The request of the parents for their children to learn Kurdish in public schools, criminalizing actions not embodied in domestic law and the freedom of expression
JUDGMENT
Döner and Others v. Turkey (no. 29994/02) 07-03-2017
SUMMARY
Teaching Kurds in public schools. Legality of detention. Freedom of expression. The applicants lived in Constantinople and sent their children to public primary schools. The case concerned the criminal prosecution against them for assisting and instigating the Kurdistan Workers’ Party (PKK), since the applicants had made a request to teach Kurdish to children in their schools. Submission of this request resulted in criminal proceedings, in which some of them were detained. When the case was tried, the applicants were acquitted. The applicants complained, in particular, in accordance with Article 5 §§ 3 and 4 (right to freedom) that they had not been brought directly before a judge and that there were no effective remedies to challenge the lawfulness of their arrest and detention. They also complained under Article 5 § 5 that they had no right to compensation under national law in respect of these complaints. Finally, based essentially on Article 10 (freedom of expression), they argued that criminal proceedings had been brought against them because of the use of their constitutional right to request despite the absence of provisions of domestic law criminalizing such behavior. The ECtHR found violations of the Convention.
PROVISIONS
Article 5 §§ 3, 4 and 5
Article 10
PRINCIPAL FACTS
The applicants are 20 Turkish nationals born between 1953 and 1983. At the time of the events giving rise to the present application, the applicants lived in Istanbul and their children attended
different public elementary schools. The case concerned the criminal proceedings brought against them for aiding and abetting the PKK (Workers’ Party of Kurdistan), after the applicants had
submitted petitions requesting that their children be taught in Kurdish.
In December 2001, all but one of the applicants submitted petitions to the Bağcılar, Esenler and Kadıköy Education Directorates with a request for their children to be provided with education in Kurdish. It appears that similar petitions were submitted by other parents of Kurdish origin at the time. Early on the morning of 13 January 2002 police officers from the Anti-terrorism branch of the Istanbul Security Directorate carried out a simultaneous search of the properties of 40 people, including the applicants, on the grounds that the petitions they had submitted had been made on the instructions of the PKK. No illegal material was found in the applicants’ homes, but they were all arrested and taken into police custody. When questioned, two of the applicants denied sending the petition. The remaining applicants admitted sending the petition but denied any affiliation with the PKK, stating that their motive had been the desire for their children to be taught in Kurdish.
On 17 January 2002 all the applicants were released, after a hearing before a judge at the Istanbul State Security Court. The public prosecutor filed an objection about the decision. On the following day the Istanbul State Security Court upheld the public prosecutor’s objection in respect of seven of the applicants, and ordered their arrest. Three of the applicants were arrested on 19 January, and held in custody until a court ordered their release on 12 February 2002.
In the meantime, the public prosecutor issued an indictment against 38 suspects, including all but one of the applicants, accusing them of aiding and abetting an armed organisation. The accused were said to have assisted the PKK by participating in its strategy of carrying out non-violent acts of civil disobedience, aimed at leaving the State in a difficult position in the international arena.
In May 2003 the Istanbul Security Court acquitted all of the accused, because on the facts none of the elements of the crime had been present in their actions and there was no other evidence to support the allegations brought against them. The applicants complained in particular under Article 5 §§ 3 and 4 (right to liberty) that they had not been brought promptly before a judge, and that there had not been any effective remedies to challenge the lawfulness of their arrest and detention. They also complained under Article 5 § 5 that they had had no right to compensation under domestic law in respect of those complaints. Lastly, relying in substance on Article 10 (freedom of expression), they maintained that they had been subjected to criminal proceedings for using their constitutional right to file a petition, despite the absence of any provisions in domestic law criminalising such conduct.
THE DECISON OF THE COURT
Violation of Article 5 §§ 3, 4 and 5 – in respect of all the applicants
Violation of Article 10 – in respect of all the applicants, except Yılmaz Yavuz
Just satisfaction: EUR 6,500 to Yılmaz Yavuz and EUR 10,000 to each of the 19 other applicants (nonpecuniary damage), and EUR 3,000 to the 20 applicants jointly (costs and expenses)
